Grand jury charges are easy, except against police

Violent protests spun into people looting and setting fires across Ferguson Monday night and early Tuesday. The chaos erupted after it was announced that the grand jury chose not to indict Officer Darren Wilson in the death of Michael Brown.
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Renla Session, center, chants during a protest in Detroit Nov. 25 in response to the Ferguson grand jury decision not to indict police officer Darren Wilson in the death of Michael Brown.(Photo: Paul Sancya, AP)

New York state Judge Sol Wachtler once famously remarked it's so easy to get a grand jury to indict, they'd indict a ham sandwich if that's what the prosecutor wanted.

Except when it comes to police officers.

A grand jury proved that Monday when it declined to charge a white Ferguson, Mo., police officer in the shooting death of an unarmed black youth. The decision led to a wave of demonstrations and anger nationwide. In the St. Louis suburb, the protests turned violent when buildings were set on fire and more than a dozen people were hurt and 61 arrested.

How did this jury of 12 men and women come to decide that Ferguson police officer Darren Wilson, 28, didn't commit a crime when he shot and killed 18-year-old Michael Brown?

To understand that, you have to turn to the 24 volumes of evidence with almost 5,000 pages of testimony from 60 witnesses that the jury heard over the course of three months. That, and you have to understand human nature.

"People do not want to believe officers do bad things," said Randolph McLaughlin, a law professor at Pace University in New York and a trial lawyer who has handled wrongful death cases against police. "Society gives them the benefit of the doubt. ... It's very difficult to indict a police officer."

Then there was the evidence itself. The jury heard more than 70 hours of testimony that included often contradictory eyewitness statements, clinical autopsy reports, police radio reports, scores of photographs and diagrams of the crime scene and complicated forensic evidence about gun residue and bullet trajectory.

Wilson's testimony was among the most riveting. In almost 100 pages of testimony, Wilson gave a vivid and detailed narrative of how Brown punched him, went after his gun, ran away, then ran back at him in full charge.

Several witnesses corroborated Wilson's account that Brown charged him. Others said Brown stood still with his hands out in front of him, as if motioning Wilson to stop. At least one witness said Brown was stepping back with his hands out at the time he was shot.

Dorian Johnson, a friend of Brown who was with him during the altercation, contradicted Wilson when he testified that the officer was the aggressor when he grabbed Brown by the shirt at his car. He said Wilson and Brown argued, but his friend never went for the gun. He said Brown ran away after Wilson shot him and never charged toward him.

Witnesses disagreed about what occurred at the start of the altercation when Brown was next to the police car. Some said they saw his arms moving in and out and thought he was struggling to break free of Wilson's grasp. Others said they saw the same motion and concluded he was throwing punches at the officer.

Some of the evidence included highly technical discussions about the difference between gun powder soot vs. residue and the distinctions between entry and exit wounds.

Put together, all the evidence served to overwhelm, and even confuse, the grand jury, some legal experts said. They question why St. Louis Prosecuting Attorney Robert McCulloch chose to do it that way.

Members of the Missouri Highway Patrol walk past a building burned to the ground Nov. 25 in Dellwood, Mo.(Photo: Jeff Roberson, AP)

Ben Trachtenberg, a University of Missouri law professor, stopped short of saying McCulloch laid out an overwhelming amount of evidence to keep the grand jury from charging Wilson.

"I'm not prepared to say it's improper, but it's certainly unusual," he said. "It certainly looks like he put on a much greater amount of evidence than we're used to."

Normally, Trachtenberg said, a grand jury sees and hears much less evidence before being asked to vote on indicting a suspect.

"In many cases, the grand jury can see evidence in a few minutes and take a vote," he said.

That's because prosecutors simply need to establish probable cause, he said. They don't have to try the entire case.

On the other hand, prosecutors bringing what they consider a weak case before a grand jury might present more evidence because that could save them from losing in court.

"Nobody wants to get an indictment that you just barely get, because you get smacked around in the real trial," he said.

Trachtenberg noted that the grand jury saw evidence that helped bolster Wilson's version of events, not secure an indictment.

Joel Shults, a retired police chief of Adams State University in Colorado, who is a consultant and trainer, defended the prosecutor's decision to provide the grand jury all of the evidence. If McCulloch hadn't presented exhaustive evidence, critics would have accused him of withholding information that could have affected the case.

"It was not a terribly unusual kind of investigation or kind of hearing," he said.

Police officers can use deadly force when they or someone else face a threat of death or serious physical injury.

Western Connecticut State University law professor Terrence Dwyer says that from what he has seen of the testimony, Wilson was justified.

"A lot of people are hung up on the fact that (Brown) was unarmed, but that doesn't factor into the criteria," said Dwyer, a retired New York state police veteran.

Wilson told the grand jury Brown punched him repeatedly, and he feared another blow would kill him or knock him out.

Pace law professor McLaughlin suggests Wilson had an alternative course of action after Brown ran 8 to 10 feet from the police vehicle.

"He had already called for backup, but the officer made the decision to get out of his car and give chase," he said.

McLaughlin says such a high profile case should have gone to trial in an open court so everyone could see the evidence as it was presented. "They wanted to do it in secret, and I don't trust any process done in secret," he said.

The grand jury process presents a conflict of interest for prosecutors, who have to work day in and day out with police to make their cases stick. Prosecutors may not present their strongest case against an officer as a result, he said. The prosecutor rarely interrupted Wilson during his grand jury testimony, McLaughlin noted.

"At a trial, the prosecutor would go after the officer," McLaughlin said. "He would poke holes in his testimony. Here, the prosecutor basically just let him tell his story.

"So a grand juror puts himself in the shoes of the officer and thinks, 'What would I have done?' " he said.

"We saw how completely how unfair this process was," Brown family lawyer Benjamin Crump said Tuesday. "We object as publicly and loudly as we can on behalf of Michael Brown Jr.'s family that this process is broken. The process should be indicted."

Crump said Wilson's testimony doesn't fit his injuries and other physical evidence. He accused McCulloch of defending Wilson rather than prosecuting him — of failing to put his "best case" before the grand jury.

"Why change the rules when it is our children (of color) dead on the ground?" Crump said.